George F. Bearup, J.D.

Senior Trust Advisor

What’s in a Name (or Gender)?

One of the habits developed over four decades as an attorney was to skim the ‘legal notices’ section in the morning newspaper. While I no longer practice law, out of that habit I still look at the published legal notices. One that caught my eye a couple of weeks ago was a legal notice where an individual had petitioned the local probate court to change their legal name. Why that published notice jumped out was the proposed name [I have substituted the names] change to: The Petitioner wishes to change his legal name from Robert Smith to Roberta Johnson.

That simple newspaper notice prompted me think about the impact of a commonplace name change on an existing Will or trust in which Robert-Roberta is named as a beneficiary. What happens if Robert-Roberta’s father dies with a Will that expressly bequests a substantial sum to ‘my son, Robert’? Is Robert-Roberta entitled to receive that bequest on his (her) father’s death? Does the name change, from Robert to Roberta, disqualify the father’s child from the bequest?

Probably a voluntary name change will be treated much like a daughter who married and changed her name to her married name, so that the parent’s presumed intent is that their daughter will receive the inheritance, despite their daughter taking her married name.

However, would that same presumed parental intent be applied to a bequest under the Will ‘to my son, Robert’? It is hard to predict how a probate judge would decide that question if it arose. Such a presumed intent might be even more strained if the father’s Will provided ‘I bequeath to my son, Robert Smith IV, the amount of $___.’ Identifying Robert in the Will with reference to his formal given name, including the fact that he is the fourth in the family with that same name may not be significant to persuade the probate judge to deny Robert-Roberta the inheritance. However, if added to the change in names is fact that Robert-Roberta’s father had no contact with him after the formal name (and/or sex) change the probate judge might reach a different interpretation of the father’s bequest ‘to my son, (who is the fourth in the family with the same name)’. More likely, if Robert’s father was angered by his son’s change of name, he would change his Will and remove the bequest to Robert, but there are frequent occasions when revising estate-planning documents will take a back seat to other life activities.

To get back to the legal notice, where Robert asks the probate court to legally change his name to Roberta, if Robert actually goes through with a gender change medical procedure (along with his legal name change) would that change in Robert’s gender affect the interpretation of his father’s Will? The father’s bequest’s expressly uses the word son, which is gender specific, and probate judges are required to give full effect to each word used in a Will or a trust.

We live in an era where cultural norms are rapidly changing. That evolution includes the issue of gender identity. Several recent statistical studies have found that over 1.4 million Americans now identify as transgender. These changing norms were reflected in the 2015 Supreme Court decision Obergefell v Hodges, which legally recognized same-sex marriage in all states. One explanation for the apparent increase in gender identity discussion in today’s society was the Obergefell Court’s observation: “The Constitution promises liberty to all within its reach, a liberty that includes specific rights that allow persons, within lawful realm, to define and express their identity (emphasis supplied.)”

Self-selected gender identification is becoming more common. Fifteen states (with more on the way) now permit driver’s licenses to be issued with a nonbinary gender designation. Other states have followed suit and changed their insurance laws to require unisex tables to be used to price auto and life insurance premiums.

With these cultural and self-identity currents rapidly circulating through our society, it might be wise for Wills and trusts to be reviewed, and possibly updated, to add a clause that addresses the grantor’s intent with regard to self-selected gender identification, or a physical change in a beneficiary’s gender. For example, a simple provision added to a Will or trust might state: Any gifts, bequests, or devises to a named individual who survives me shall not be altered, forfeited or eliminated if such individual changes or reassigns their name or gender, or who holds themselves out as transgender individual.

While a named beneficiary is still the same person after their name change, or their gender reassignment, the legal rules that are normally followed to construe a Will or trust to ascertain the grantor’s intent are not always as forgiving. A bequest to an individual described as my child would be enforced, regardless of the change of name or gender of that individual. However, a reference to that individual by their name coupled with their gender, e.g. my son, Robert, could create an interpretation problem for the probate judge to resolve if the named beneficiary later changes their gender.

Self-selecting transsexual identities and gender reassignments are just one more reason to periodically review your Will or trust instrument to confirm that your wishes are described clearly, and that those wishes reflect this unique situations of each beneficiary.

A Message from William D. Johnston

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